<PAGE>
Exhibit 10.2
IMARX THERAPEUTICS, INC.
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS
SECOND AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (the
"AGREEMENT") is entered into as of April 14, 2006, by and among
IMARX
THERAPEUTICS, INC., a Delaware corporation (the "COMPANY"), and the
investors
listed on Exhibit A hereto, referred to hereinafter as the
"INVESTORS" and each
individually as an "INVESTOR."
RECITALS
WHEREAS, certain of the Investors and the Company have entered into
that
certain Amended and Restated Investor Rights Agreement dated
October 10, 2002
(the "A/D PRIOR RIGHTS AGREEMENT") and, in accordance with Section
5.6 of the
Prior Rights Agreement, the Company and certain of the signatories
to the Prior
Rights Agreement whose signatures appear below and who hold, in the
aggregate,
the percentage of capital stock of the Company required to amend
and restate the
A/D Prior Rights Agreement desire to amend and restate the A/D
Prior Rights
Agreement in its entirety as set forth herein;
WHEREAS, certain of the Investors and the Company have entered into
that
certain Registration Rights Agreement dated January 19, 2001 (the
"B/C PRIOR
RIGHTS AGREEMENT") and, in accordance with Section 14(c) of the B/C
Prior Rights
Agreement, the Company and certain of the signatories to the B/C
Prior Rights
Agreement whose signatures appear below and who hold, in the
aggregate, the
percentage of capital stock of the Company required to amend and
restate the B/C
Prior Rights Agreement desire to amend and restate the B/C Prior
Rights
Agreement in its entirety as set forth herein;
WHEREAS, the Investors have purchased shares of the Company's
Series A
Convertible Preferred Stock, Series B Convertible Preferred Stock,
Series C
Convertible Preferred Stock, Series D Convertible Preferred Stock,
and/or Series
F Convertible Preferred Stock (the "PREFERRED STOCK") pursuant to
various stock
purchase agreements, most recently pursuant to that certain Series
F Preferred
Stock Purchase Agreement, dated as of the date hereof (the
"PURCHASE
AGREEMENT");
WHEREAS, the obligations in the Purchase Agreement are conditioned
upon the
execution and delivery of this Agreement; and
WHEREAS, in connection with the consummation of the
transactions
contemplated by the Purchase Agreement, the parties desire to enter
into this
Agreement to grant registration, information and other rights to
the Investors
as set forth below.
NOW,
THEREFORE, in consideration of the premises and for other good
and
valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged, the parties hereto agree that each of the A/D Prior
Rights
Agreement and B/C Prior Rights Agreement shall be amended and
restated in their
entirety as follows:
<PAGE>
SECTION 1. GENERAL.
1.1
DEFINITIONS. As used in this Agreement the following terms shall
have
the following respective meanings:
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended,
and the rules and regulations promulgated thereunder.
"FORM S-1" means such form under the Securities Act as is in effect
on
the date hereof or any similar or successor registration form
requiring full
disclosure under the Securities Act subsequently adopted by the SEC
(as defined
below) which permits inclusion or incorporation of substantial
information by
reference to other documents filed by the Company with the SEC.
"FORM S-3" means such form under the Securities Act as in effect
on
the date hereof or any successor or similar registration form under
the
Securities Act subsequently adopted by the SEC which permits
inclusion or
incorporation of substantial information by reference to other
documents filed
by the Company with the SEC.
"HOLDER" means any person owning of record Registrable Securities
that
have not been sold to the public or any assignee of record of such
Registrable
Securities in accordance with Section 2.10 hereof.
"INITIAL OFFERING" means the Company's first firm commitment
underwritten public offering of its Common Stock registered under
the Securities
Act.
"REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration
effected by preparing and filing a registration statement in
compliance with the
Securities Act, and the declaration or ordering of effectiveness of
such
registration statement or document.
"REGISTRABLE SECURITIES" means (a) Common Stock of the Company
issued
or issuable upon conversion of the Shares, (b) any shares of Common
Stock issued
to the Investors on or prior to the date hereof, and (c) any shares
of Common
Stock of the Company issued as (or issuable upon the conversion or
exercise of
any warrant, right or other security which is issued as) a dividend
or other
distribution with respect to, or in exchange for or in replacement
of, such
above-described securities. Notwithstanding the foregoing,
Registrable
Securities shall not include any securities sold by a person to the
public
either pursuant to a registration statement or Rule 144 or sold in
a private
transaction in which the transferor's rights under Section 2 of
this Agreement
are not assigned, or as to which all registration rights of such
Holder have
terminated under Section 2.7.
"REGISTRABLE SECURITIES THEN OUTSTANDING" shall be the number
of
shares determined by calculating the total number of shares of the
Company's
Common Stock that are Registrable Securities and either (a) are
then issued and
outstanding or (b) are issuable pursuant to then exercisable or
convertible
securities.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in complying with Sections 2.2, 2.3 and 2.4 hereof,
including, without
limitation, all registration
2
<PAGE>
and filing fees, printing expenses, fees and disbursements of
counsel for the
Company, reasonable fees and disbursements of a single special
counsel for the
Holders as provided in Section 2.5, blue sky fees and expenses and
the expense
of any special audits incident to or required by any such
registration (but
excluding the compensation of regular employees of the Company
which shall be
paid in any event by the Company).
"SEC" or "COMMISSION" means the Securities and Exchange
Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended,
and the rules and regulations promulgated thereunder.
"SELLING EXPENSES" shall mean all underwriting discounts and
selling
commissions applicable to the sale.
"SHARES" shall mean shares of the Company's Preferred Stock held
by
the Investors.
"SPECIAL REGISTRATION STATEMENT" shall mean a registration
statement
relating to any employee benefit plan or with respect to any
corporate
reorganization or other transaction under Rule 145 of the
Securities Act.
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER.
2.1
RESTRICTIONS ON TRANSFER.
(A) Each Holder agrees not to make any disposition of all or
any
portion of the Shares or Registrable Securities unless and
until:
(I) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such
disposition is made
in accordance with such registration statement; or
(II) (A) The transferee has agreed in writing to be bound by
the
terms of this Agreement, (B) such Holder shall have notified the
Company of the
proposed disposition and shall have furnished the Company with a
detailed
statement of the circumstances surrounding the proposed
disposition, and (C) if
reasonably requested by the Company, such Holder shall have
furnished the
Company with an opinion of counsel, reasonably satisfactory to the
Company, that
such disposition will not require registration of such shares under
the
Securities Act. It is agreed that the Company will not require
opinions of
counsel for transactions made pursuant to Rule 144 except in
unusual
circumstances.
(III) Notwithstanding the provisions of subsections (i) and
(ii)
above, no such registration statement or opinion of counsel shall
be necessary
for a transfer (A) by a Holder which is a partnership to its
partners or former
partners in accordance with their respective partnership interests,
(B) by a
Holder which is a limited liability company to its members or
former members in
accordance with their respective interest in the limited liability
company, (C)
by a Holder to his or her family members or trusts, family limited
partnerships
or family limited liability companies, for the benefit of an
individual Holder
or his or her family
3
<PAGE>
member(s), (D) by a Holder which is a corporation to its
shareholders in
accordance with their respective interest in the corporation, or to
its
subsidiaries or other entities in which it holds a controlling
interest, or (E)
by a Holder to any affiliate of such Holder or any entity or
vehicle including a
partnership in which such Holder and/or its affiliates has a
majority economic
interest and which is managed by such Holder and/or its affiliates;
provided
that in each case the transferee will be subject to the terms of
this Agreement
to the same extent as if he were an original Holder hereunder.
(B) Each certificate representing Shares or Registrable
Securities
shall (unless otherwise permitted by the provisions of the
Agreement) be stamped
or otherwise imprinted with a legend substantially similar to the
following (in
addition to any legend required under applicable state securities
laws):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD
OR
OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS
AND
UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED
AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL
THAT
SUCH REGISTRATION IS NOT REQUIRED.
(C) The Company shall be obligated to reissue promptly
unlegended
certificates at the request of any Holder thereof if the Holder
shall have
obtained an opinion of counsel (which counsel may be counsel to the
Company)
reasonably acceptable to the Company to the effect that the
securities proposed
to be disposed of may lawfully be so disposed of without
registration,
qualification or legend.
(D) Any legend endorsed on an instrument pursuant to applicable
state
securities laws and the stop-transfer instructions with respect to
such
securities shall be removed upon receipt by the Company of an order
of the
appropriate blue sky authority authorizing such removal.
2.2
DEMAND REGISTRATION.
(A) REQUEST BY MAJORITY OF HOLDERS. If the Company shall receive
at
any time after December 31, 2008 a written request from the Holders
of at least
a majority of the Registrable Securities then outstanding (the
"INITIATING
HOLDERS") that the Company file a registration statement under the
Securities
Act covering the registration of Registrable Securities having an
anticipated
aggregate public offering price (net of any underwriting discounts
and
commissions) of not less than ten million dollars ($10,000,000),
then the
Company shall, within fifteen (15) days of the receipt of such
written request,
provide a Request Notice to all Holders, and use its best efforts
to effect, as
soon as practicable but in any event within ninety (90) days after
the date such
request is given by the Initiating Holders, the registration on
Form S-1 (or any
successor form of such long-form registration) under the Securities
Act of all
Registrable Securities which Holders request to be registered and
included in
such registration by written
4
<PAGE>
notice given by such Holders to the Company within fifteen (15)
days after
receipt of the Request Notice, subject only to the limitations of
this Section
2.2.
(B) UNDERWRITING. If the Initiating Holders intend to distribute
the
Registrable Securities covered by their request by means of an
underwriting,
then they shall so advise the Company as a part of their request
made pursuant
to this Section 2.2 and the Company shall include such information
in the
written notice referred to in subsection 2.2(a). The managing
underwriter shall
be selected by the Initiating Holders and reasonably acceptable to
the Company.
In such event, the right of any Holder to include its Registrable
Securities in
such registration shall be conditioned upon such Holder's
participation in such
underwriting and the inclusion of such Holder's Registrable
Securities in the
underwriting to the extent provided herein. All Holders proposing
to distribute
their securities through such underwriting shall enter into an
underwriting
agreement in customary form with the managing underwriter or
underwriters
selected for such underwriting by the Company. Notwithstanding any
other
provision of this Section 2.2, if the managing underwriter advises
the Company
in writing that marketing factors require a limitation of the
number of
securities to be underwritten, then the Company shall so advise all
Holders of
Registrable Securities which would otherwise be registered and
underwritten
pursuant hereto, and the number of Registrable Securities that may
be included
in the underwriting shall be reduced as required by the managing
underwriter and
allocated among the Holders of Registrable Securities on a pro rata
basis
according to the number of Registrable Securities then outstanding
held by each
Holder requesting registration (including the Initiating Holders);
provided,
however, that the number of shares of Registrable Securities to be
included in
such underwriting and registration shall not be reduced unless all
other
securities of the Company are first entirely excluded from the
underwriting and
registration. Any Registrable Securities excluded and withdrawn
from such
underwriting shall be withdrawn from the registration.
(C) MAXIMUM NUMBER OF DEMAND REGISTRATIONS. The Company shall
be
obligated to effect no more than two (2) registrations pursuant to
Section
2.2(a) and shall not be obligated to effect any such registration
(i) during the
180-day period after the effective date of the Company's initial
public offering
of its securities pursuant to a registration statement filed under
the
Securities Act; or (ii) if the Initiating Holders propose to
dispose of
Registrable Securities that may be immediately registered on Form
S-3 pursuant
to a request made under Section 2.4. Subject to Section 2.2(d)
below, if, within
thirty (30) days of the Company's receipt of the request for such
registration,
the Company shall furnish to the Holders requesting such
registration a notice
stating that the Company intends to file a registration statement
pursuant to
Section 2.3 hereof within ninety (90) days, the Company shall not
be required to
effect a registration pursuant to Section 2.2(a) until ninety (90)
days after
the effective date, or the abandonment, of such registration
statement. This
deferral right may not be used within one year of the expiration of
a deferral
pursuant to Section 2.2(d). A registration under Section 2.2(a)
shall not be
counted as "effected" for purposes of this Section 2.2(c) unless
and until such
time as the SEC declares effective the applicable registration
statement
covering all of the Registrable Securities requested by the Holders
to be
registered, unless the Initiating Holders withdraw their request
for such
registration due to reasons other than the discovery of material
adverse
information concerning the Company of which the initiating Holders
were not
aware at the time of such request, in which case such withdrawn
registration
statement shall be counted as "effected" for purposes of this
Section 2.2(c).
5
<PAGE>
(D) DEFERRAL. Notwithstanding the foregoing, if the Company
shall
furnish to Holders requesting the filing of a registration
statement pursuant to
this Section 2.2, a certificate signed by the chief executive
officer of the
Company stating that, in the good faith judgment of the Board of
Directors of
the Company, it would be materially detrimental to the Company and
its
shareholders for such registration statement to be filed and it is
therefore
essential to defer the filing of such registration statement, then
the Company
shall have the right to defer taking action with respect to such
filing for a
period of not more than ninety (90) days after receipt of the
request of the
Initiating Holders; provided, however, the Company may not utilize
this deferral
right or the delaying right provided in Section 2.2(c) more than
once in any
twelve (12)-month period.
2.3
PIGGYBACK REGISTRATIONS.
(A) NOTICE. The Company shall notify all Holders of Registrable
Securities in writing at least thirty (30) days prior to the filing
of any
registration statement under the Securities Act for purposes of a
public
offering of securities of the Company (including, but not limited
to,
registration statements effected by the Company for stockholders
other than the
Holders but excluding Special Registration Statements) and will
cause to be
registered all of the Registrable Securities that each such Holder
has requested
to be included in such registration. Each Holder desiring to
include in any such
registration statement all or any part of the Registrable
Securities held by it
shall, within twenty (20) days after the above-described notice
from the
Company, so notify the Company in writing. Such notice shall state
the intended
method of disposition of the Registrable Securities by such Holder.
If a Holder
decides not to include all of its Registrable Securities in any
registration
statement thereafter filed by the Company, such Holder shall
nevertheless
continue to have the right to include any Registrable Securities in
any
subsequent registration statement or registration statements as may
be filed by
the Company with respect to offerings of its securities (but
excluding Special
Registration Statement(s)), all upon the terms and conditions set
forth herein.
(B) UNDERWRITING. If the registration statement under which the
Company gives notice under this Section 2.3 is for an underwritten
offering, the
Company shall so advise the Holders of Registrable Securities. In
such event,
the right of any such Holder to be included in a registration
pursuant to this
Section 2.3 shall be conditioned upon such Holder's participation
in such
underwriting and the inclusion of such Holder's Registrable
Securities in the
underwriting to the extent provided herein. All Holders proposing
to distribute
their Registrable Securities through such underwriting shall enter
into an
underwriting agreement in customary form with the underwriter or
underwriters
selected for such underwriting by the Company. Notwithstanding any
other
provision of the Agreement, if the underwriter determines in good
faith that
marketing factors require a limitation of the number of shares to
be
underwritten, the number of shares that may be included in the
underwriting
shall be allocated, first, to the Company; second, to the Holders
on a pro rata
basis based on the total number of Registrable Securities held by
the Holders;
and third, to any stockholder of the Company (other than a Holder)
on a pro rata
basis based on the total number of shares of Common Stock owned by
those
stockholders who are not Holders desiring to participate in the
underwriting. No
such reduction shall (i) reduce the securities being offered by the
Company for
its own account to be included in the registration and
underwriting, or (ii)
reduce the amount of securities of the selling Holders included in
the
registration below twenty-five percent (25%) of the total amount
of
6
<PAGE>
securities included in such registration, unless such offering is
the Initial
Offering and such registration does not include shares of any other
selling
stockholders, in which event any or all of the Registrable
Securities of the
Holders may be excluded in accordance with the immediately
preceding sentence.
In no event will shares of any other selling stockholder be
included in such
registration which would reduce the number of shares which may be
included by
Holders without the written consent of Holders of not less than
two-thirds (2/3)
of the Registrable Securities proposed to be sold in the offering.
If any Holder
disapproves of the terms of any such underwriting, such Holder may
elect to
withdraw therefrom by written notice to the Company and the
underwriter,
delivered at least ten (10) business days prior to the effective
date of the
registration statement. Any Registrable Securities excluded or
withdrawn from
such underwriting shall be excluded and withdrawn from the
registration. For any
Holder which is a partnership or corporation, the partners, retired
partners and
stockholders of such Holder, or the estates and family members of
any such
partners and retired partners and any trusts for the benefit of any
of the
foregoing person shall be deemed to be a single "HOLDER," and any
pro rata
reduction with respect to such "HOLDER" shall be based upon the
aggregate amount
of shares carrying registration rights owned by all entities and
individuals
included in such "HOLDER," as defined in this sentence.
(C) RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right
to terminate or withdraw any registration initiated by it under
this Section 2.3
prior to the effectiveness of such registration whether or not any
Holder has
elected to include securities in such registration. The
Registration Expenses of
such withdrawn registration shall be borne by the Company in
accordance with
Section 2.5 hereof.
2.4
FORM S-3 REGISTRATION. In case the Company shall receive from
any
Holder or Holders a written request or requests that the Company
effect a
registration on Form S-3 (or any successor to Form S-3) or any
similar
short-form registration statement and any related qualification or
compliance
with respect to all or a part of the Registrable Securities owned
by such Holder
or Holders, the Company will:
(A) promptly give written notice of the proposed registration, and
any
related qualification or compliance, to all other Holders; and
(B) as soon as practicable, effect such registration and all
such
qualifications and compliances as may be so requested and as would
permit or
facilitate the sale and distribution of all or such portion of such
Holder's or
Holders' Registrable Securities as are specified in such request,
together with
all or such portion of the Registrable Securities of any other
Holder or Holders
joining in such request as are specified in a written request given
within
fifteen (15) days after receipt of such written notice from the
Company;
provided, however, that the Company shall not be obligated to
effect any such
registration, qualification or compliance pursuant to this Section
2.4:
(I) if Form S-3 is not available for such offering by the
Holders;
(II) if the Company has, within the twelve (12) month period
preceding the date of such request, already effected one (1)
registration on
Form S-3 for any Holders pursuant to this Section 2.4;
7
<PAGE>
(III) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such
registration, propose to
sell Registrable Securities and such other securities (if any) at
an aggregate
price to the public of less than Five Hundred Thousand Dollars
($500,000);
(IV) if within thirty (30) days of receipt of a written request
from any Holder or Holders pursuant to this Section 2.4, the
Company gives
notice to such Holder or Holders of the Company's intention to make
a public
offering, other than pursuant to a Special Registration Statement,
within sixty
(60) days;
(V) if the Company shall furnish to the Holders a certificate
signed by the Chairman of the Board of Directors of the Company, or
if there be
none, by the Chief Executive Officer, stating that in the good
faith judgment of
the Board of Directors of the Company, it would be materially
detrimental to the
Company and its stockholders for such Form S-3 registration to be
effected at
such time, in which event the Company shall have the right to defer
the filing
of the Form S-3 registration statement for a period of not more
than ninety (90)
days after receipt of the request of the Holder or Holders under
this Section
2.4; provided, that such right to delay a request shall be
exercised by the
Company not more than once in any twelve (12) month period; or
(VI) in any particular jurisdiction in which the Company would
be
required to qualify to do business or to execute a general consent
to service of
process in effecting such registration, qualification or
compliance.
(C) Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and
other securities
so requested to be registered as soon as practicable after receipt
of the
request or requests of the Holders. Registrations effected pursuant
to this
Section 2.4 shall not be counted as demands for registration or
registrations
effected pursuant to Sections 2.2 or 2.3, respectively.
2.5
EXPENSES OF REGISTRATION. Except as specifically provided herein,
all
Registration Expenses incurred in connection with any
registration,
qualification or compliance pursuant to Section 2.2 or any
registration under
Section 2.3 or Section 2.4 herein, and the fees and disbursements
of counsel for
the Company and the reasonable fees and disbursements of one (1)
counsel for the
selling Holder or Holders up to a total of $65,000 in connection
with a
registration pursuant to Section 2.2 or up to a total of $40,000 in
connection
with a registration pursuant to Section 2.3 or 2.4, shall be borne
by the
Company. All Selling Expenses incurred in connection with any
registrations
hereunder shall be borne by the Holders of the securities so
registered pro rata
on the basis of the number of shares so registered. The Company
shall not,
however, be required to pay for expenses of any registration
proceeding begun
pursuant to Section 2.2 or 2.4, the request of which has been
subsequently
withdrawn by the initiating Holders unless (a) the withdrawal is
based upon
material adverse information concerning the Company of which the
initiating
Holders were not aware at the time of such request or (b) the
Holders of a
majority of Registrable Securities agree to forfeit their right to
one requested
registration pursuant to Section 2.2 or Section 2.4, as applicable,
in which
event such right shall be forfeited by all Holders). If the Holders
are required
to pay the Registration Expenses, such expenses shall be borne by
the Holders of
securities (including Registrable Securities) requesting
8
<PAGE>
such registration in proportion to the number of shares for which
registration
was requested. If the Company is required to pay the Registration
Expenses of a
withdrawn offering pursuant to clause (a) above, then the Holders
shall not
forfeit their rights pursuant to Section 2.2 or Section 2.4 to
demand
registrations.
2.6
OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as
expeditiously
as reasonably possible:
(A) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use all reasonable
efforts to cause
such registration statement to become effective, and, upon the
request of the
Holders of a majority of the Registrable Securities registered
thereunder, keep
such registration statement effective for up to one hundred eighty
(180) days
or, if earlier, until the Holder or Holders have completed the
distribution
related thereto.
(B) Prepare and file with the SEC such amendments and supplements
to
such registration statement and the prospectus used in connection
with such
registration statement as may be necessary to comply with the
provisions of the
Securities Act in order to enable the disposition of all securities
covered by
such registration statement for the period set forth in paragraph
(a) above.
(C) Furnish to the Holders such number of copies of a
prospectus,
including a preliminary prospectus, in conformity with the
requirements of the
Securities Act, and such other documents as the Holders may
reasonably request
to facilitate the disposition of Registrable Securities owned by
them.
(D) Use its reasonable efforts to register and qualify the
securities
covered by such registration statement under such other securities
or blue sky
laws of such jurisdictions as shall be reasonably requested by the
Holders;
provided that the Company shall not be required in connection
therewith or as a
condition thereto to qualify to do business or to file a general
consent to
service of process in any such states or jurisdictions.
(E) In the event of any underwritten public offering, enter into
and
perform its obligations under an underwriting agreement, in usual
and customary
form, with the managing underwriter(s) of such offering. Each
Holder
participating in such underwriting shall also enter into and
perform its
obligations under such an agreement.
(F) Notify each Holder of Registrable Securities covered by
such
registration statement at any time when a prospectus relating
thereto is
required to be delivered under the Securities Act of the happening
of any event
as a result of which the prospectus included in such registration
statement, as
then in effect, includes an untrue statement of a material fact or
omits to
state a material fact required to be stated therein or necessary to
make the
statements therein not misleading in the light of the circumstances
then
existing. The Company will use reasonable efforts to amend or
supplement such
prospectus in order to cause such
